Violation of the Aarhus Convention became a norm!

On March 28, 2013, the Aarhus Convention Compliance Committee for the forth time came to a conclusion that the Republic of Kazakhstan does not obey provisions of the Convention.

In March, 2011, the Committee received a statement from the public association “National Analysis and Information Resource” (NAIR) from the city of Shymkent. The reason was a violation of the NAIR’s right to take part in the process of decision making and limitation of an opportunity to express their opinion during the conduct of state environmental review of the project “South West Roads Project: Western Europe – Western China International Transit Corridor”.

The Committee had found that Kazakhstan did not provide compliance with:
– the paragraph 2, article 6: “The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner”;
– the paragraph 6, article 6: “ Each Party shall require the competent public authorities to give the public concerned access for examination, upon request where so required under national law, free of charge and as soon as it becomes available, to all information relevant to the decision-making…”;
– the paragraph 7, article 6: “Procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity”;
– the paragraph 9, article 6: “Each Party shall ensure that, when the decision has been taken by the public authority, the public is promptly informed of the decision in accordance with the appropriate procedures. Each Party shall make accessible to the public the text of the decision along with the reasons and considerations on which the decision is based.

The first violation of the Convention’s provisions was detected on February 18, 2005, after a statement from the Ecological Society Green Salvation about failure to provide information by the National Atomic Company “Kazatomprom”.

Findings and recommendations made by the Compliance Committee at that time stated the following:
“25. The Committee finds that, by having failed to ensure that bodies performing public functions implement the provisions of article 4, paragraphs 1 and 2, of the Convention, Kazakhstan was not in compliance with that article.
26. The Committee also finds that the lengthy review procedure and denial of standing to the non-governmental organization in a lawsuit on access to environmental information was not in compliance with article 9, paragraph 1.
27. The Committee further finds that the lack of clear regulation and guidance with regard to the obligations of bodies performing public functions to provide information to the public and with regard to the implementation of article 9, paragraph 1, constitutes non-compliance with the obligations established in article 3, paragraph 1, of the Convention.”

On the same date, February 18, 2005, in regard of the second statement from the Ecological Society, the Committee states the following:
“33. … the Government of Kazakhstan did not comply fully with article 6, paragraph 1 (a), and annex I, paragraph 20, of the Convention, and, in connection with this, article 6, paragraphs 2, 3, 4, 7 and 8.”

The Committee recommended to the Government of Kazakhstan, with a view to fully implementing article 3, paragraph 1, of the Convention, to:
“(i) Adopt and implement regulations setting out more precise public participation procedures covering the full range of activities subject to article 6 of the Convention, without in any way reducing existing rights of public participation;
(ii) Ensure that public authorities at all levels, including the municipal level, are fully aware of their obligations to facilitate public participation;
(iii) Consider introducing stronger measures to prevent any construction work going ahead prior to the completion of the corresponding permitting process, with the required level of public participation”.

On June 16, 2006, for the third time, the Committee found a failure to comply with the Convention based on the statement from residents of the city of Almaty Gatina L., Gatin A., and Konyushkova L.

The findings and recommendations state: “35. The Committee finds that the failure by Kazakhstan to provide effective remedies in a review procedure concerning an omission by the public authority to enforce environmental legislation as well as failure to ensure that courts properly notify the parties of the time and place of hearings and of the decision taken constitutes a failure to comply with the requirements of article 9, paragraph 4, in conjunction with article 9, paragraph 3, of the Convention.”

Finally, in 2013, once again, the Committee comes to a conclusion that the Republic of Kazakhstan does not comply with the requirements of the Convention. It is indicative that the violations happened in regard of the main provisions of the article 6, same violations which were found by the Committee back in 2005!

As they say, the first time is an accident, the second time is a coincidence, and the third time is a norm!

Preliminary findings and recommendations based on the statement from the “National Analysis and Information Resource” were only made, when the Ministry of Environmental Protection already assured the Committee that the findings and recommendations will be “considered in detail and taken into account during the process of further improvement of the environmental legislation”.

But not much long after the Ministry’s promise, Almaty residents witnessed new violations of the Convention: failure to provide information about construction of a by-pass road around Almaty; formal organization of public hearings; doubtful information about authorities of the Ministry of Environmental Protection; provision of insufficient data about conducting of environmental assessment.

What are the state bureaucrats and businessmen guided by when allowing acts like that to happen? Conventions, law? The answer was given during a speech of one of the officials: “The law has nothing to do with this – we have a special mentality!”

The only thing is that the Aarhus Convention is a juridical document, and the international community solves legal issues following the law, and not peculiarities of the national mentality of the Parties of the Convention.

All materials regarding reviewing of the statement from the NAIR can be located here:

A final version of the findings and recommendations of the Committee in regard of the Republic of Kazakhstan will be published in the nearest future.
Ecological Society Green Salvation